IN THE UPPER TRIBUNAL	Upper Tribunal case No.  CDLA/3008/2014
ADMINISTRATIVE APPEALS CHAMBER

Before:	E Mitchell, Judge of the Upper Tribunal

Decision:  The decision of the First-tier Tribunal (4th November 2013, East Ham, file reference SC 919/13/01524) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the rehearing are at the end of this decision.

REASONS FOR DECISION

Introduction

1. This appeal is mainly about the final sentence in the following passage from Social Security Commissioner decision R (DLA) 2/95:
“The nature of the ‘cooked main meal’ which the claimant ‘cannot prepare’ is crucial. In my view it is a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. What is reasonable is a question of fact to be determined by reference to what is reasonable for a member of the community to which the claimant belongs, e.g. a vegetarian meal as opposed to one which is not.”
2. The cooked main meal forms part of the ‘cooking test’ which is one entitlement route to the lowest rate of the care component of Disability Living Allowance (DLA). R (DLA) 2/95 requires, it is argued, the nature of the cooked main meal to vary according to the community to which a claimant belongs. 

3. I do not accept this argument. The nature of the cooked main meal must, in material respects, be the same for all claimants. Otherwise, different claimants would face different disability thresholds. That cannot have been Parliament’s intention. 

4. The First-tier Tribunal’s decision is set aside on other grounds. At a hearing, it failed to ask sufficient questions about the claimant’s walking difficulties in order properly to decide whether he was virtually unable to walk. 

Background

5. 52 year old Mr I claimed DLA. His November 2012 claim form only mentioned physical disabilities arising from a 2010 fractured left femur, following which he underwent internal fixation surgery which, 6 months’ later, failed resulting in extensive remedial surgery. The medical evidence shows that the remedial surgery itself was not entirely successful. The latest medical correspondence says that Mr I’s femur remains in a state of “non-union”.

6. On 28th January 2013, the Secretary of State refused to make any award of DLA. Mr I appealed to the First-tier Tribunal (“the Tribunal”).

Contents of Mr I’s claim form, so far as relevant to this appeal

7. In relation to walking, Mr I’s claim form said he needed crutches to walk and could normally walk 100 metres before he felt severe discomfort. This would take 5 minutes. Walking speed was very slow and additional problems were a “heavy limp” and “balance issues”. While Mr I indicated falls or stumbles twice a week, he did not claim to need guidance or supervision when walking outdoors in unfamiliar places (which was relevant to the entitlement test for the lower rate of the mobility component of DLA).

8. Mr I wrote that he was unable to cook for himself: “I must rely on take away foods to eat because I would be at high risk of injury if I attempted to [cook]”. 

Medical evidence before the Tribunal about Mr I’s physical disabilities

9. A letter of 24th July 2012 from Mr I’s consultant orthopaedic surgeon said “patient today is comfortable but he still has difficulty to go up and down the stairs” and advised Mr I “to be well mobilised with walking, but he has to avoid as much as possible going up and down the stairs”. 

10. In July 2012, Mr I was examined by a psychologist. Obviously, this focussed on his mental health but the psychologist did observe that Mr I “entered the examination room with normal gait”.

11. The Department for Work & Pensions obtained a short report from Mr I’s GP in January 2013 which replied “OK” to questions whether Mr I had difficulties with self-care and his ability to get around. This was the month in which the decision under appeal was taken. 

12. A letter of 15th August 2013, from a locum registrar in orthopaedics, said Mr I “continues to have pain on mobilising, difficulty in going upstairs and occasional pain through the night” and “clinically this gentleman has come into clinic today on two crutches”. A further letter from Mr I’s GP of 20th September 2013 said that he had “persistent pain negotiating the stairs”. 

Medical evidence before the Tribunal about Mr I’s mental health 

13. Mr I’s claim form did not mention mental ill-health. However, a psychological report, prepared following the July 2012 examination, said that as a result of his leg injury he had developed “stress symptoms” and an “adjustment disorder with mixed anxiety and depressed mood”. This report also noted that, at July 2012, he had not sought his GP’s help for mental health problems and had been absent from work for 14 months, from his job as a social therapist in a psychiatric hospital. 

14. By 8th August 2013, Mr I had accessed NHS mental health services and was diagnosed with Post Traumatic Stress Disorder (PTSD). A GP letter of September 2013 confirmed that diagnosis.

The hearing before the Tribunal

15. The Tribunal held a hearing on 4th November 2013. Mr I attended and gave oral evidence to the Tribunal. 

The First-tier Tribunal’s decision

16. The Tribunal refused Mr I’s appeal and agreed with the Secretary of State that he was not entitled to any DLA award. 

17. In relation to the cooking test, the Tribunal’s reasons were as follows:

“21…Although the appellant mainly eats microwave meals obtained by a friend, upon questioning the appellant acknowledged that he could prepare a simple meal based on rice, although he could not cook traditional Nigerian food as this would take a long time to prepare. The tribunal considered that, with an aid like a perching stool, there was no reason why the appellant could not chop and peel vegetables and prepare a cooked meal for one”. 

18. In relation to the test (in this and most cases) for the higher rate of the mobility component, whether Mr I was virtually unable to walk, the Tribunal’s statement of reasons did not record any clear findings of fact. Rather, the reasoning deployed was that, in the light of Mr I’s own evidence and the observations of his doctors, his “ability to mobilise, whilst limited, was not so limited as to render him virtually unable to walk”. The relevant part of the statement of reasons read as follows:

“17. In relation to higher rate mobility, the tribunal had regard to the evidence of the appellant’s consultant who has told him to mobilise. He uses public transport alone and goes by bus to his GP and hospital. By the appellant’s own account, the bus stop is 80 m away, although he has to stop along the way due to pain. In his claim form, he indicated he could walk slowly with crutches.

…19. The tribunal considered that the appellant’s ability to mobilise, whilst limited, was not so limited as to render him virtually unable to walk, given that he was able to mobilise alone to appointments using public transport. The tribunal also had regard to the fact that the appellant can alleviate his pain with painkillers and also because his consultant…has encouraged him to mobilise, although to avoid stairs as much as possible. As a result of his problems with stairs he was re-housed in ground floor accommodation. The tribunal accepts that there has been non-union of the fracture and he is still under specialist care for this. However, his GP report received 25/01/2013 indicates no problems with mobilising and subsequent reports indicate he can walk with crutches and therefore the tribunal concluded that he did not satisfy the test of being virtually unable to walk.”

19. Despite Mr I’s claim form having ticked a box to indicate he did not need someone to guide or supervise him when walking outdoors in unfamiliar places, the Tribunal, as it was entitled to do, addressed whether he was entitled to the lower rate of the mobility component. It decided he was not:

“In relation to lower rate mobility, the tribunal accepted that the appellant suffers from anxiety about his leg breaking again, and is receiving counselling for this. However, according to the psychologist’s report dated 6/12/2012 he does not meet the overall criteria for PTSD and is not on any psychotropic medication for this. For these reasons, the tribunal concluded that the appellant’s condition was not severe enough to prevent him from walking in unfamiliar places out of doors without guidance or supervision”. 

20. After the hearing, Hackney Community Law Centre became Mr I’s representative. 

The grounds of appeal

21. The First-tier Tribunal refused Mr I permission to appeal to the Upper Tribunal. He renewed his application before the Upper Tribunal. I granted permission. The grounds of appeal, and the Secretary of State’s response, are summarised as follows.

Lowest rate of the care component - the cooking test

22. Mr I argued that the First-tier Tribunal made errors of law in applying the cooking test. Two were identified: 

(a) the Tribunal wrongly failed to consider whether Mr I was able to cook a main meal “which is reasonable for a member of his community”, which the representative described as the Nigerian community. I understood the argument to be the Tribunal misdirected itself in law by not following the decision of Social Security Commissioner Heggs in R (DLA) 2/95 that the cooking test involves preparing a reasonable main daily meal for the community to which the claimant belongs;

(b) the Tribunal erred in law by not considering “whether it would be reasonable for Mr [I] to use a perching stool”. 

23. The Secretary of State argued that R (DLA) 2/95 did not require cultural or ethnic considerations to be taken into account in identifying the notional cooked main meal. Either R (DLA) 2/95, properly understood, had never called for this or, if it had, it was wrongly decided because it was inconsistent with the decision of the House of Lords in Moyna (discussed below). The Secretary of State also referred to what I believe is an unpublished decision of Upper Tribunal Judge May QC, in CDLA/2729/2011 which held that “the statutory test does not have regard to cultural differences in the preparation of a cooked main meal”. 

24. The Secretary of State also drew attention to the evidential difficulties involved in identifying a particular claimant’s community and the culinary features of that community. All of those problems, argued the Secretary of State, would be avoided by ignoring community, culture or ethnic-specific considerations. Neither party requested a hearing of the appeal. 

25. There were also human rights arguments.

26. The Secretary of State argued that the only article of the European Convention on Human Rights that might possibly be relevant was article 14 which requires the enjoyment of the rights and freedoms in the Convention to be secured without discrimination on any ground such as those listed in article 14. However, no one is treated differently by the cooking test, argued the Secretary of State, so that there was no possibility of anyone’s rights under Article 14 being breached.

27. Mr I’s representative’s argument was set out in the reply to the Secretary of State’s response. It assumed that “the purpose of the lower rate care component awarded on the basis of the cooking test must be to ensure that the disabled person, in spite of his disability, is able to maintain a reasonable diet commensurate with human health and dignity”. It was said that “the test recognises that achieving the standard of a “reasonable meal” may require more effort for members of different communities. For example, it may be more difficult for a disabled Jewish person to cook a kosher meal or a disabled Muslim person to cook a halal meal…than it is for a person whose religious or cultural background contains no dietary restrictions”. It was argued:

“the test [as formulated by the representative] ensures that claimants’ rights under article 14 in conjunction with Article 9 (freedom of thought, conscience and religion) and Article 8 (right to [respect for] family and private life) of the ECHR are protected by preventing indirect discrimination on the basis of religious or cultural/family circumstances”. 

28. This argument was not articulated by reference to the Human Rights Act 1998 but I have taken it to be an argument that section 3 of the Human Rights Act 1998 required the Upper Tribunal to read the cooking test provisions in the manner suggested. Section 3(1) provides:

“so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. 

29. In relation to the perching stool ground, the Secretary of State criticised the tribunal for, in his view, failing to consider whether it was “practical and reasonable” for Mr I to use a perching stool given his disability. However, the Secretary of State argued that, if there was an error of law, it was not material. Since Mr I’s oral evidence was that he could prepare a simple meal based on rice in his perching stool-free kitchen, he had to be able to prepare a cooked main meal even without a perching stool.

Higher rate of the mobility component - virtual inability to walk 

30. Mr I’s representative argued that the Tribunal failed to discharge its inquisitorial duty. It should have asked Mr I further questions in order to ascertain his walking speed and the degree of discomfort experienced when walking. 

31. The Secretary of State notes the Tribunal’s finding as to Mr I’s walking speed was no more specific than “slow”. However, the Tribunal also referred to the statement in Mr I’s claim form that he could walk 100 metres in 5 minutes before experiencing severe discomfort. According to the Secretary of State, whether or not this amounted to Mr I being virtually unable to walk was a matter for the Tribunal’s judgement and they gave a sufficient explanation for their conclusion that it did not. 

Lower rate of the mobility component

32. Mr I’s representative challenged the Tribunal’s reliance on the psychologist’s conclusion that he did not have PTSD. The representative pointed out that other clinicians had diagnosed PTSD. I note, however, that at no point in the course of this appeal has any positive assertion been made that Mr I is entitled to the lower rate of the mobility component. 

Whether traditional meals within a claimant’s ‘community’ are relevant to the DLA cooking test

What the legislation says

33. What has become known as the cooking test is found in section 72 of the Social Security Contributions and Benefits Act 1992:

“(1) Subject to the provisions of this Act, a person shall be entitled…for any period throughout which-
(a)	he is so severely disabled mentally or physically that-
…(ii) he cannot prepare a cooked main meal for himself if he has the ingredients…”
34. Section 72(2) ensures that, generally, entitlement is reserved to individuals whose disability is relatively persistent, by incorporating an historical as well as a prospective element into the entitlement test:

"…a person shall not be entitled to the care component of a disability living allowance unless 

(a) throughout…the period of 3 months immediately preceding the date on which the award of that care component would begin…he has satisfied or is likely to satisfy…subsection 1(a)…above; and

(b) he is likely to continue to satisfy…those conditions throughout…(i) the period of 6 months beginning with that date…".

Moyna

35. The leading case about the cooking test provisions is the House of Lords’ decision in Moyna v Secretary of State for Work & Pensions [2003] 1 WLR 1929, [2003] UKHL 44, R (DLA) 7/03. At paragraph 17, Lord Hoffman, with whom all their other Lordships agreed, said this:
“17…[the cooking test’s] purpose is not to ascertain whether the applicant can survive, or enjoy a reasonable diet, without assistance. It is a notional test, a thought-experiment, to calibrate the severity of the disability. It does not matter whether the applicant actually needs to cook. As the form DLA 1 said, "try to imagine how much help you would need if you tried to do this." No doubt some people (disabled or otherwise) do need to cook or prefer to do so, although home cooking seems to be fighting a losing battle against convenience foods and ready-cooked meals. Not for nothing is the notional meal contemplated by the cooking test described in the authorities as "traditional". It must be remembered that disability living allowance is a non-contributory, non-means tested benefit. A person who cannot cook for himself is entitled to the allowance…whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy. On the other hand, even if a person needs to cook and has the motor skills to do so, he may still need assistance; to obtain the ingredients which the test assumes him to have, or because he is culinarily incompetent. So in my view the Court of Appeal was wrong to lay such emphasis upon the fact that unless the applicant could cook more or less every day, she would not enjoy a reasonable quality of life.”
36. For present purposes, the significant point is that the cooking test was held to be “a notional test, a thought-experiment, to calibrate the severity of the disability”. Inevitably, this involves the concept of a “notional meal”, to which Lord Hoffman himself referred. I also note Lord Hoffman agreed with earlier authorities that the notional meal is what he referred to as a “traditional” meal.
R (DLA) 2/95
37. Mr I relies on the decision in R (DLA) 2/95. The Social Security Commissioner began by stressing the objective nature of the test: “…the ‘cooking test’ is a hypothetical test to be determined objectively”. 
38. However, the Commissioner went on to suggest that the object of the test – a meal – may vary according to factors personal to a claimant:
“The nature of the ‘cooked main meal’ which the claimant ‘cannot prepare’ is crucial. In my view it is a labour intensive reasonable main daily meal freshly cooked on a traditional cooker. What is reasonable is a question of fact to be determined by reference to what is reasonable for a member of the community to which the claimant belongs, e.g. a vegetarian meal as opposed to one which is not.”
Conclusion
39. If R (DLA) 2/95 envisages materially different meals for different communities (whatever a community is) it is incompatible with the ruling in Moyna that the cooking test is a notional test, designed to calibrate the severity of disability. 
40. I suppose it would be possible for the cooking test to operate by reference to different meals for different communities while retaining its notional character. There would simply be a whole range of notional meals for the different communities to which claimants might belong.
41. What would be destroyed, though, by permitting the notional meal to vary from community to community is the character of the cooking test as a “thought experiment, to calibrate the severity of disability”.
42. Since the test simply calibrates disability, rather than aiming to secure access to a reasonable daily cooked meal, Parliament must have intended materially the same test for all. Parliament is to be presumed not to enact illogical legislation and it would be illogical for a test whose purpose is simply to calibrate disability to have different thresholds for different communities. The cooking test involves assessing a person’s ability to do various things with, and to, foodstuffs. Some are physical activities, such as chopping, peeling and carrying. Some are mental activities, such as correctly sequencing activities.  The foodstuffs involved, and the activities performed in relation to them, must in material respects be the same for all. That is necessary in order to ensure a standard test.
43. The present case illustrates how varying the main meal from community to community would create different disability thresholds for different communities. It is said that, within the Nigerian community, meals take significantly longer to prepare than meals associated with some other communities. If that is right, then the disability bar is lowered for that community. A meal that takes 1 hour to prepare is more demanding, so that fewer disabled people would be able to complete the task, than a meal that takes say half an hour to prepare. 
44. This is not to say that individual culinary preferences must be ignored. By all means, decision makers and tribunals may ask claimants about the styles of cooking with which they are familiar. But it must always be borne in mind that the purpose of the exercise is to obtain evidence about ability to perform those tasks comprised in preparing the traditional cooked main meal referred to in Moyna.
45. To sum up, in so far as R (DLA) 2/95 holds that the cooking test meal may vary to a material extent by reference to the community to which a claimant belongs it is incompatible with Moyna. To that extent, R (DLA) 2/95 should not be followed.
46. I am not in fact convinced that the Commissioner in R (DLA) 2/95 intended the cooking test meal to vary to a material extent by reference to the community to which a claimant belongs. She stressed that the test was “objective” (and so, at the risk of stating the obvious, not subjective) and her identification of the tasks involved seems to me to anticipate a common set of activities:
“8…The test depends on what a claimant cannot do without help on each day. Because the main meal has to be cooked, the test includes all activities auxiliary to the cooking such as reaching for a saucepan, putting water in it and lifting it on and off the cooker. All cooking utensils must of course be placed in a reasonable position.
9. The word “prepare” emphasises a claimant’s ability to make all the ingredients ready for cooking. This includes the peeling and chopping of fresh vegetables as opposed to frozen vegetables, which require no real preparation. However in my view a chop, a piece of fish or meat ready minced does not fall in the category of “convenience foods” and are permissible as basic ingredients.”
Does the Human Rights Act 1998 require a different result?
47. The article of the European Convention on Human Rights on which Mr I relies is Article 14. 
48. The general approach of the European Court of Human Rights in the application of article 14 was explained by that Court’s Grand Chamber in Carson v United Kingdom (2010) 51 EHRR, para 61: 
"In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."
49. If the cooking test is applied properly, in accordance with Moyna, no one is treated any differently to anyone else. There is no direct discrimination because the test is a uniform one. That is nearly the end of the matter in relation to Article 14. The only remaining issue is whether there is discrimination contrary to Article 14 due to a failure to treat differently persons whose situation is relevantly different. It seems to me that Mr I’s representative’s argument probably falls within this category given the contention that the test ought to accommodate particular religious or cultural dietary requirements, 
50. Mr I’s representative’s argument rests on the flawed premise that the cooking test’s purpose is to ensure a disabled person has a reasonable diet. That is not its purpose, which is simply a means of calibrating disability. Since the cooking test is not an attempt by the state to ensure reasonable nutrition for disabled people, it cannot realistically be argued that it is indirectly discriminatory for the test to fail to take account of different cooking preferences across different communities. 
51. While the arguments in relation to Article 14 could hardly be described as well developed, I am confident that it does not require any modification to what I have held in paragraph 45.  
The perching stool issue

52. Below, I set aside the Tribunal’s decision for errors of law concerning the mobility component. For that reason, I will say nothing about the perching stool issue. The Secretary of State’s argument is that, even if errors were made, they were immaterial because the evidence showed Mr I could prepare a cooked main. I do not want to say anything about that argument in case it is viewed as an opinion on the merits of Mr I’s claim. Like every other issue on Mr I’s appeal, the cooking test will need to be considered afresh by the Tribunal to which the appeal is remitted. 

The mobility component

53. There were evidential conflicts about Mr I’s walking ability. 

54. On the less favourable side of the scale for Mr I’s claim, his own G.P. wrote that his ability to get around was “OK” and the examining psychologist observed his gait to be normal. His consultant had also advised him to be “well mobilised”, a peculiar combination of words but which might be viewed as advice to move around although a medical member of the First-tier Tribunal is far better qualified than I to interpret them. 

55. On the other hand, Mr I’s evidence, if accepted, made a clear case for entitlement to the higher rate of the mobility component on the grounds that he was virtually unable to walk. His claim form indicated it would take him 5 minutes to walk just 100 metres, before the onset of severe discomfort, and his oral evidence to the Tribunal was that  he could not walk the 80 metres to his bus stop in one go.  

56. No doubt, there are cases where the evidence speaks for itself, in unison, so that a Tribunal is not required to set out separately findings of fact about a person’s ability to walk. For the sake of illustration, if Mr I’s clinicians had said that he had no problem regularly walking 200 metres with a normal gait and he had not disputed this, the Tribunal would have been entitled simply to conclude that the evidence clearly showed the entitlement test was not met.  But this was not a case where the undisputed evidence spoke for itself. Nor was it a case where the Tribunal rejected Mr I’s evidence.

57. The Tribunal seems to have accepted Mr I’s evidence that he could not walk to his bus stop, 80 metres from home, without stopping. In those circumstances, clear issues arose as to why he stopped, how frequently, the time taken to walk between stopping points and his recovery period. Since Mr I’s evidence was not rejected, findings were required about those matters in order for the Tribunal properly to apply regulation 12(1) of the Social Security (Disability Living Allowance) Regulations 1991:

“(1) A person is to be taken to satisfy the conditions mentioned in section 73(1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances-
(a) his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment-
…(ii) his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk”.
58. I accept Mr I’s representative’s argument that the Tribunal was not sufficiently inquisitorial. It should have asked Mr I further questions about his walking ability. In turn, that has led to inadequate reasons for the Tribunal’s decision. Due to those errors of law, I set its decision aside and remit Mr I’s appeal to a differently-constituted First-tier Tribunal for re-hearing. That is to be a complete re-hearing in which the issues arising are considered afresh. In its reasoning, this Tribunal may not take into account the decision or findings of fact of the Tribunal whose decision I have set aside. 

59. In circumstances where it has never been claimed that Mr I meets the entitlement criteria for the lower rate of the mobility component and the appeal is to be remitted in any event, I shall not say anything about Mr I’s challenge to the Tribunal’s decision that he was not entitled to this rate of the component. 

Directions

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

(1)	An oral hearing must be held by the First-tier Tribunal. The Tribunal’s membership must not include anyone who was a member of the Tribunal whose decision I have set aside.
(2)	The Tribunal must not take into account matters personal to Mr I in determining the nature of the notional cooked main meal the preparation of which is to be assessed in the application of the cooking test. This does not, however, limit the evidence that the Tribunal may take into account. 
(3)	Mr I is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 28 January 2013, when the decision under appeal was taken
(4)	If Mr I has any further evidence that he wishes to put before the Tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued.
(5)	Within one month of the date on which this Decision is issued, Mr I must supply the Tribunal with a supplementary submission which sets out whether he claims to be entitled to the lower rate of the mobility component and, if so, on what basis.  He may make any further argument which he wishes to make in that submission.

			(Signed on the Original)
							E Mitchell
							Judge of the Upper Tribunal 

                                                                                                2 March 2015